IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Rev. No. 926 of 2005
Kanhaiya Lal Bansal ... ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. Inspector of Factories, Dhanbad...... Opposite parties
CORAM: THE HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner : Mr. Biren Poddar, Advocate
For the State : Mr. A.B. Mahto, A.P.P.
3 /22.09.2011 This application is for quashing the order dated
20.07.2005
passed by learned Judicial Magistrate, 1st Class,
Dhanbad in F.A. No.249 of 2001, whereby he dismissed the
application of petitioner for discharge.
It is submitted on behalf of petitioner that petitioner was
earlier Director of M/S OM Shri Durga Hard Coke M.F.G. Co.(P)
Ltd. However, he resigned from the post of Director on 1st of
July 1990 i.e. before filing of present complaint petition. Thus,
he cannot be treated as occupier of the Factory, hence offence
under Section 92 of the Factories Act is not made out. Thus, he
is entitled to be discharged from the charges levelled against
him.
It appears that earlier petitioner filed Cr. M.P. No.800 of
2003 against the order of cognizance dated 24.02.2001 and took
same defence. In that case, this Court observed that “Other
evidence cannot be taken into consideration by this Court at
this stage to come to a conclusion that at present the petitioner
is not the occupier of the factory.” However, this Court further
observed that petitioner may raise said point at the time of
framing of charge. It appears that against the said order,
petitioner moved to Hon’ble Supreme Court by filing Special
Leave to Appeal (Crl.) No.61486149/2004). From perusal of
Annexure 12, it appears that Hon’ble Supreme Court has not
interfered with aforesaid order. Thereafter, petitioner filed an
application for discharge in the court below on the ground that
he has already resigned from the post of Director of Company
(M/S OM Shri Durga Hard Coke M.F.G. Co.(P) Ltd.). It appears
that learned court below after considering the materials come
to conclusion that though several opportunities given to
petitioner, he never informed complainant, who is Inspector
2.
of Factories, that he resigned from the post of Director of
Company in question. It is well settled that discharge petition is
required to be disposed of on the basis of materials produced by
prosecution party and at that time, court is not required to see
the defence of accused. Since, there is nothing in complaint
petition as well as evidences adduced in support of complaint
petition that petitioner had already resigned from the post of
Director of Company prior to lodging of complaint petition, I
find that aforesaid defence of accused cannot be looked at the
time of framing of charge.
Learned court below after considering materials available
on record come to the conclusion that prima facie offence
against the accused is made out. Thus, I find no reason to
interfere with the said order.
Accordingly, this application is dismissed and order of
learned court below is hereby affirmed.
(Prashant Kumar, J.)
R.K.